2023 Breakfast with Judges of the Third Circuit 

Friday, March 3, 2023
8:00 am – 9:00 am – breakfast 
9:00 am – 10:00 am – CLE program
Seton Hall Law School
Newark, NJ

Join the AFBNJ for an insider’s discussion about the Third Circuit, including the process of your appeal from filing to decision, how to prepare a persuasive brief, and how to present an effective oral argument.

Hon. Michael A. Chagares, Chief Judge
Hon. Paul B. Matey
Hon. Patty Shwartz

PROGRAM SUMMARY:

At the Third Circuit Breakfast program on March 3, 2023, Chief Judge Chagares, Judge Patty Shwartz, and Judge Paul Matey of the Third Circuit answered questions from lawyers about practicing before the Third Circuit. Here is a summary of some of the very helpful insight and tips they provided, which apply equally well in every court.

Briefs

  1. Be on the lookout for redundancy and wheel-spinning, often caused when a brief is drafted by multiple people with different points of view.
  2. Don’t go overboard on string cites, especially with long parentheticals; the judges and law clerks are going to pull the cases and read them for themselves.
  3. Focus on what binds the particular court, the standard of review, and basis for jurisdiction.

Prepare for Oral Argument

  1. Know your beginning and your ending; you likely will not control the middle.
  2. Only 35% of appeals get argued.  So if you’re called in, expect a hot bench that wants a dialogue.
  3. Get comfortable with your argument.  Practice. Know what words you want to use.
  4. Don’t use a script.  Create an outline.  Pay attention and know the main points that need to be made.

At Oral Argument

  1. If the court tells you in advance where to focus, start there.
  2. Don’t assume you will save things for rebuttal; use it to respond for what was said by your opponent.
  3. As the appellee (arguing second), trust your gut.  Emphasize your strongest points but don’t ignore the weaker ones.
  4. Listen carefully and observe where the court is focused.
  5. View the panel as having a conversation about the issues to be resolved.  Contribute to the conversation as they strive to get to the right answer.

Court Rules

  1. Know them.  For example, non-precedential opinions in the 3rd are not binding.  The court is interested in what their colleagues have said, but it can’t be cited.  They are not necessarily reflecting what the court as a whole thinks.
  2. Remember only “for publication” opinions are reviewed by the entire court before they are issued and published.

Pet Peeves

  1. Splitting arguments: Don’t usually like when attorneys split arguments (with exception of allowing a very junior attorney to do the argument, with senior doing ‘clean up’).
  2. Lack of courtesy:  Don’t talk over the judge.
  3. Failure to respond:  Answer the judge’s question.
  4. Briefs too long:  Keep the reply briefs short.
  5. Arguing too far:  Concede an issue when appropriate.
  6. Blaming others:  Don’t resort to “I wasn’t the trial lawyer.”  (The judge can’t say, “I wasn’t the trial judge.”)

WRITTEN MATERIALS:

Order Amending Internal Operating Procedures: A new amendment to the Court’s Internal Operating Procedures gives attorneys more notice of oral argument (IOP 2.5). The new rule is linked.

Internal Operating Procedures: Link to the full Internal Operating Procedures of the US Court of Appeals for the Third Circuit.

Third Circuit’s Model Civil and Criminal Jury Instructions

Third Circuit’s Local Appellate Rules: These rules supplement the Federal Rules of Appellate Procedure.

Criminal Justice Act and Appointed Counsel Information: For the Third Circuit Court of Appeals.

Clerk’s Office Directory for the US Court of Appeals for the Third Circuit.

Third Circuit’s YouTube channel: You can listen to a live-stream of oral argument here.

Audio recordings of prior arguments.

Free for AFBNJ members.
$25 for all non-members.

Important CLE Information:
1.0 CLE credits have been approved towards New Jersey.
1.0 substantive CLE credits have been approved towards Pennsylvania.
In order to receive proper credit, each attendee is required to complete and submit a CLE affirmation form after the program.